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Assault and Battery: Handcuffs

     Deputies did not use excessive force in allegedly placing handcuffs too tightly on a burglary arrestee. It was objectively reasonable for them to finish their initial investigation and clear the area before addressing the arrestee's complaints about his handcuffs being too tight. They subsequently loosened them.

     The deputies also had probable cause to arrest him for burglary, having seen him carrying things out of a house they believed no one was permitted to enter, which he admitted entering through a window, defeating his false arrest claim. The arrestee's statement that he was the attorney for the co-administrator of the estate connected with the premises, even if true, did not end probable cause to detain him for investigation of a burglary. Beltran v. County of Los Angeles, #08-56007, 2010 U.S. App. Lexis 22013 (Unpub. 9th Cir.).

Assault and Battery: Physical

     An officer was investigating information received that a woman may have been mistreating her minor niece, who was living with her while the child's parents were going through a divorce. While speaking to the officer, the woman came under the delusion that the officer was there to "kidnap" the child, and tried to pull the girl away from the officer, who was conducting a "welfare check" on the girl to see if she was ok. A fight ensued, and the officer handcuffed and arrested the woman. Her excessive force claim was rejected, as the officer's use of force against her, resulting in a scraped cheek and a sore, perhaps sprained, ankle, was reasonable under the circumstances. Her false arrest claim was also rejected. Pearlman v. City of Fort Worth, #10-10056, 2010 U.S. App. Lexis 23152 (Unpub. 5th Cir.).

Business Permits and Regulations

     The owner of entities that operate four bars claimed that a township, a city, and several police officers were engaged in a course of conduct intended to unlawfully interfere with the businesses. The municipalities sought compliance with various zoning and other regulatory measures and ordinances, and obtained an injunction against nudity by dancers at one of the bars. In a federal civil rights lawsuit, the businesses claimed officers staged a "bomb scare" at one bar, conducted harassing searches, investigated various activities at the bars, including alleged tampering with the body of a customer who died on the premises, used confidential informants to determine whether one of the bars was being used as a house of prostitution, etc. The list of actions taken in connection with various investigations and searches of the businesses was long and complicated.

     The federal appeals court found that there was no evidence of an unlawful conspiracy to interfere with the civil rights of the businesses or their owner, or to perform acts intended to interfere with business relationships or contractual rights. The court concluded that the plaintiffs at best "have shown that various government entities worked together to investigate criminal activity, a perfectly legal and accepted practice." At worst, they "have shown that some of the individuals and police procedures involved may not have been perfect, but not illegal." Hamilton v. City of Romulus, #09-2196, 2010 U.S. App. Lexis 23537 (Unpub. 6th Cir.).

Dogs

     A deputy went to a store in response to a store security officer's detention of a suspected thief. He told the suspect he was giving her a citation to appear in court, and walked outside with her to search her car. After she gave him the keys, he found what he believed to be methamphetamine inside and arrested her. When she jerked away, a struggle ensued, and she ended up on the ground, lying on her stomach, with the deputy laying on her, calling for backup on a handheld radio.

     The deputy summoned his dog, which was in his car, when she continued to struggle. The dog bit the woman's head twice and released its hold when backup arrived. The woman suffered injuries to her scalp and hair. Overturning summary judgment for the defendants in the woman's excessive force claim, a federal appeals court found that the trial court had ruled erroneously in ruling that success on that claim would necessarily imply the invalidity of her criminal conviction for resisting an officer, barring her claim. It was entirely possible to uphold her conviction for resisting the officer, while still finding that the use of the dog against her was an excessive use of force. Hooper v. Cty. of San Diego, #09-55954, 2011 U.S. App. Lexis 71 (9th Cir.).

Domestic Violence and Child Abuse

     An African-American Muslim woman and her three minor daughters sued the county, its child welfare agency, and several agency employees for actions taken in the course of a child abuse and neglect investigation. They claimed that abuse and neglect accusations were fabricated, that false information about them was released to the media, and that the defendants acted with racial and religious animus and retaliatory intent intended to "intimidate and silence" them from complaining, in violation of their First Amendment rights. After the woman's teenage son intimated that he suffered physical abuse at home, an investigation resulted in the removal of the three daughters from the home on accusations that the mother neglected their educational needs. A year later, the mother was exonerated, and the complaint was dismissed.

     A federal appeals court found that claims against two supervisory officials in the defendant agency were properly rejected as there was no evidence that they either encouraged or condoned the allegedly illegal actions of their subordinate, a defendant caseworker. The court also found no evidence that there had been any intent to "intimidate and silence" the plaintiffs from exercising their First Amendment rights. Abdulsalaam v. Franklin County Board of Commissioners, #09-4018, 2010 U.S. App. Lexis 21334 (Unpub. 6th Cir.).

     After a father was acquitted by a jury of charges that he had sexually abused his minor daughter, he filed a federal civil rights lawsuit for false arrest, malicious prosecution, and various other claims. Upholding summary judgment for the defendants, a federal appeals court rejected the argument that the investigation conducted "shocked the conscience." While the investigation "certainly may have benefited from additional interviews and evidence collection," including information about a past accusation against the father by his other daughter that was found to be "unfounded," etc., there was still sufficient evidence of possible abuse to justify the arrest and prosecution. Both were supported by probable cause based on the daughter's accusations, and the opinions of a doctor's forensic interview of her. Livingston v. Allegheny County, #10-1596, 2010 U.S. App. Lexis 23339 (Unpub. 3rd Cir.).

False Arrest/Imprisonment: No Warrant

     After a jury acquitted a woman of having assaulted her elderly mother at a nursing home, she sued the arresting officer and a number of other defendants for false arrest. Summary judgment for the defendants was upheld, as there was probable cause for the arrest, based on a nurse's report of seeing the woman shove her mother into her wheelchair, and the discovery of bruises on the mother's knee and forearms. Veatch v. Bartels Lutheran Home, #09-3678, 2010 U.S. App. Lexis 26270 (8th Cir.).

     An officer who stopped a female motorist for operating a vehicle at night without headlights discovered a package containing controlled substances in the car and detained her at a police station, where she was charged with a drug offense. Rejecting her false arrest claim, a federal appeals court noted that where a police officer “has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Because the officer had probable cause to arrest the plaintiff for the traffic offense, which she conceded she committed, her arrest, even though it was on a different charge, did not violate the Fourth Amendment. Ray v. City of Chicago, #09-3719, 2011 U.S. App. Lexis 136 (7th Cir.).

     A Florida officer wrote a female motorist a speeding ticket, and asked her to sign it. She initially refused to do so, but agreed after he informed her that, under state law, she could be arrested for the refusal. After she signed it, she stated, "I will see you in court." He then placed her under arrest, handcuffed her, and pulled her out of her car. She was charged with refusal to sign and accept a traffic citation and resisting an officer without violence. Rejecting her false arrest claim, a federal appeals court found that the offense of refusing to sign the ticket was complete upon her initial refusal, as the law does not require knowledge of the requirement for a violation, and her subsequent agreement to sign, after being informed of the law, did not remove the probable cause based on her initial refusal. The officer's subjective motivation for making the arrest was irrelevant. Snover v. City of Starke, #09-16281, 2010 U.S. App. Lexis 20238 (Unpub. 11th Cir.).

     An officer allegedly received a statement from a 15-year-old girl that she was in a sexual relationship with and had become pregnant by a 41-year-old man who gave her drugs and alcohol. She also said that he threatened to kill her family if she revealed this. The officer went to the man's apartment and made a warrantless arrest, with another officer serving as his backup. Upholding summary judgment on the basis of qualified immunity for the backup officer on a false arrest claim, a federal appeals court ruled that he did not know that the arresting officer had no warrant to make the arrest, that the suspect had asked whether there was a warrant before the arresting officer entered the apartment, or that there was no permission to enter. He had not been involved in the investigation, and was too far back to hear the conversation, only entering the apartment after seeing the arresting officer do so, and out of concern for that officer's safety. Shepard v. Hallandale Beach Police Dept., #09-14265, 2010 U.S. App. Lexis 20240 (Unpub. 11th Cir.).

     A man sitting in his parked car in a public park in the morning, with a bowl of water and a towel or rag in the car, preparing to perform his morning ritual of reading the Bible there, was accused, by a police officer, of having slept in the park overnight. The officer had seen his car there the evening before, and now told him to leave. When he refused, he was arrested for obstruction of an officer. He was also allegedly dragged out of his car, pushed against the police car, and had his face pushed into the hood.

     The officer had arguable probable cause to make the arrest, a federal appeals court held, based on his observations. Staying in the park overnight when it was closed would have violated local law, and the officer did not know that the man allegedly had a personal ritual of returning to the park to read the Bible or placing a wet cloth on his forehead preparatory to that reading. The force used in making the arrest was also found to be minimal and not excessive. Howell v. City of Lithonia, #09-11599, 2010 U.S. App. Lexis 20190 (Unpub. 11th Cir.).

False Arrest/Imprisonment: Warrant

     An officer had arguable probable cause to obtain a warrant to arrest a woman for making terroristic threats based on the alleged victim's statement that she had said that her son would not shoot him if he would release a car that was the subject of a dispute, which could be interpreted as a threat of violence. Williams v. Taylor-Lee, #10-11016, 2010 U.S. App. Lexis 19981 (Unpub. 11th Cir.).

     Based on an identification of a suspect from a photo array by a store security guard who had witnessed an armed robbery, a detective sought and obtained a warrant to arrest the suspect. Witnesses said that the robber had braided hair, as did the suspect in the photo included in the array. While searching the arrestee's residence, officers found photos dated just several weeks prior to the robbery in which the suspect had short, unbraided hair. Despite this discrepancy, there was probable cause to seek the warrant and make the arrest based on the witness's identification. White v. Brown, #10-2502, 2010 U.S. App. Lexis 22933 (Unpub. 3rd Cir.).

Firearms Related: Intentional Use

     Officers shot and killed a suicidal man who lunged at them with a knife, after having stabbed himself, and who had not been subdued by the prior use of a Taser. The Ohio Supreme Court held that, in a federal civil rights and state excessive force case, the trial judge's denial of qualified immunity to officers on the federal claims, and denial of summary judgment to the city on failure to train claims were final appealable orders under state law. An intermediate state appeals court therefore erred in dismissing the defendants' appeal of those denials. Summerville v. City of Forest Park, #2009-2106, 2010 Ohio Lexis 3294.

Firearms Related: Negligent Use

****Editor's Case Alert****

     Officers pursuing a suspect in an attempted armed robbery in New York returned gunfire after the suspect refused to drop his weapon and fired at them. While the officers did not see any bystanders or pedestrians in the immediate area during the ensuing gun battle, a bullet struck the elbow of a woman playing with her infant daughter and socializing with neighbors on the street near her residence. She sued the officers and city for negligent use of firearms in violation of departmental guidelines.

     The highest court in New York ruled that her claims were properly dismissed. It was undisputed that all officers who fired did so when they had a clear view of the suspect, who was firing at them or other officers, and that they did not see the plaintiff, her daughter, or other bystanders in the area. Under these circumstances, they had the discretion to fire their weapons, and there was no issue concerning whether they unnecessarily endangered innocent persons. Johnson v. City of N.Y., #192, 2010 N.Y. Lexis 3334.

First Amendment

     A man ejected from a city council meeting and arrested after he gave a silent Nazi salute sued the city for violating his First Amendment rights. On the eve of trial on his claim, the trial court, acting on its own, granted summary judgment to city officials, finding that they were entitled to qualified immunity. Reversing, a federal appeals court held that the plaintiff should have been given adequate notice and a chance to respond before summary judgment was granted. Norse v. Santa Cruz, #07-15814, 2010 U.S. App. Lexis 25502 (9th Cir.).

     Editor's note: In a prior ruling in Norse v. City of Santa Cruz, #07-15814, 586 F.3d 697 (9th Cir. 2009), the federal appeals court ruled that the rule under which the ejection took place did not facially violate the arrestee's First Amendment rights, as it did not bar his expression of his point of view, but rather disruptive protesting of a good faith attempt by the chairperson of the meeting to maintain order and enforce council rules. The court ordered further proceedings on an "as applied" challenge to the ouster, involving a determination as to whether the man's action had actually been disruptive so as to come under the rule.

Governmental Liability

     A man sued a city and one of its police officers after he was placed in handcuffs at his home by the officer, angry that he refused to reveal the whereabouts of a friend suspected of sexual assault. When he then agreed to show the officer where his friend lived, he was allegedly kept in handcuffs in the back of a police vehicle for six hours outside his friend's house. No charges were brought against either man. The lawsuit claimed the city was liable for these actions because it maintained an official or de facto policy of illegally arresting and detaining persons who were not suspected of crimes and it had failed to train and supervise the officer properly. In a trial on claims against the officer only, jury awarded $50,384 in compensatory damages and $150,000 in punitive damages.

     A federal appeals court held that the plaintiff could not proceed with claims against the city, as any recovery against it would be duplicative of his recovery against the officer, and the city was responsible for paying the judgment against the officer. All he could recover in a further proceeding against the city was nominal damages of a dollar, and the trial court could exercise its discretion to avoid a trial on that basis. Manzanares v. City of Albuquerque, #10-2011, 2010 U.S. App. Lexis 25621 (10th Cir.).

     Editor's note: The details of how claims against the officer only were tried separately relate to the plaintiff's filing of two lawsuits and are related in the full text of the decision.

Negligent or Inadequate Hiring, Retention, or Supervision

     A grandmother claimed that she suffered a heart attack at her home because officers used excessive force during a raid there. In her excessive force lawsuit, a federal appeals court held that the plaintiff failed to present viable claims against three senior police officers involved in the planning of the raid, or against the town based on the actions of its police chief. Officers conducted a "surround and call out" operation at her home aimed at apprehending one of her grandsons. All occupants of the home were ordered to come out, one at a time, with their hands raised.

     The grandmother, the first out, did not raise her hand as high as the officers ordered, and was told to raise them higher or be shot. A pat-down found no weapons, and she was restrained with her hands behind her back with a plastic zip-tie, and seated on the ground next to a police vehicle, complaining of chest pain. The grandson was arrested, but the grandmother remained restrained and seated while officers obtained a signed consent from another family member to search the house. She continued to sit restrained during the search, but was later taken to a hospital by ambulance for her heart attack.

     Claims against the three supervising officers who planned the operation lacked merit, the appeals court found, as there was no allegation of any involvement on their part in the alleged use of excessive force, and supervisory personnel cannot be held liable for federal civil rights violations simply as a matter of vicarious liability for the actions of their subordinates. The fact that allegedly excessive force was not used against other women who were in the house indicated that it was not plausible that the supervisors had directed or intended that such force be used during the operation. As to the liability of the town, even if the police chief were its final policymaker, the plaintiff failed to show that any plan of his for the raid was the source of her alleged injury. Santiago v. Warminster Township, #10-1294, 2010 U.S. App. Lexis 25414 (3rd Cir.).

Public Protection: Arrestees

     After police arrested a suspect in the robbery of a restaurant patron, who was a county prosecutor and newly elected judge, they brought the handcuffed arrestee to the restaurant to have his victim identify him. The victim lunged at him and poked his left eye, causing swelling and pain. The officers allegedly omitted mention of this attack in their report, and at the jail, the arrestee claimed, personnel delayed for several weeks eye surgery he needed to prevent going blind from glaucoma. The prosecutor could not be held liable for violation of the arrestee's civil rights, as he acted as a private person, not under color of state law. The officers were not liable on a failure to protect claim, as they had no advance indication that the victim was going to attack the arrestee. The court also rejected the claim for deliberate indifference to the plaintiff's serious medical needs, finding that his eye surgery was scheduled as soon as medical personnel determined that it was needed. Collins v. Alevizos, #10-1421, 2010 U.S. App. Lexis 25176 (Unpub. 11th Cir.).

Public Protection: Disturbed/Suicidal Persons

     Police officers struggled with a screaming uncontrollable man suffering from bipolar disorder and schizophrenia running around his house naked. Following a violent struggle, they eventually subdued and restrained him in a "hobble"—a cord that is looped around a suspect's lower legs and then connected to a strap that is attached to handcuffs. A few minutes after he was hobbled, he stopped breathing. The officers removed the hobble, attempted CPR, and called for an ambulance, but he never regained consciousness, and died.

     A federal civil rights lawsuit by his estate claimed that officers inadequately responded to his medical needs during his arrest, and that the city failed to properly train the officers on the use of the hobble. Affirming summary judgment for the defendants, a federal appeals court ruled that the officers began CPR and called paramedics as soon as they realized the man was not breathing, satisfying a Fourth Amendment reasonableness standard, and that the officers did not violate the man's Fourth Amendment rights by the manner in which they used the hobble, so the city could not be held liable for failing to properly train them. Sallenger v. City of Springfield, #08-3769, 2010 U.S. App. Lexis 25803 (7th Cir.).

Search and Seizure: Home/Business

     A city in Texas entered into an agreement with a professional football team to become the owner of a new sports stadium leased by the team. The city reviewed and modified a proposed traffic management plan for the area around the stadium. The owners of a 348-unit building next to the stadium sued the city for unreasonable seizure in violation of the Fourth Amendment, regulatory and physical "takings" in violation of due process, and private nuisance, based on residents' delays in entering or leaving the building due to the large numbers of pedestrians who converge on the stadium during events, and restrictions on vehicular traffic on the street. The trial court granted summary judgment to the city.

     Affirming this result, a federal appeals court found that the plaintiff had failed to show any "seizure" that amounted to a meaningful interference with its possessory interests in its property. The inconveniences suffered due to the crowds and noise attracted by the stadium did not amount to a seizure under any prior Fourth Amendment caselaw. Enclave Arlington Associates Limited Partnership v. City of Arlington, Texas, #09-11202, 2010 U.S. App. Lexis 23637 (Unpub. 5th Cir.).

     A town ordinance authorized police to post a bright orange sticker at the front entrance of any residence found to have hosted an "unruly gathering," after intervening and dispersing it for violations of the law such as excessive noise, obstruction of streets, illegal parking, public drunkenness or urination, or the serving of alcohol to minors. The notice informs those who own or reside in the building that, should police intervention be required at that location in response to another violation, the owners and residents, the sponsors of the gathering, and any guests who cause a nuisance will be held jointly and severally liable. Landlords are informed of the notice by mail. In a lawsuit challenging the constitutionality of this measure, a federal appeals court found that it was unorthodox but did not offend the constitution or state law. URI Student Senate v. Town of Narragansett, #10-1209, 2011 U.S. App. Lexis 141 (1st Cir.).

Search and Seizure: Search Warrants

     A group of officers, including a SWAT team, gathered one evening to execute a no-knock search warrant at a residence believed to be the site of a marijuana growing operation. They used a ram to break down the door, aggressively yelled as they entered, and forcibly removed a female resident from the couch, placing her roughly on the floor. Her husband was tackled from behind, handcuffed, placed in leg restraints, and tasered. He also claimed that he was repeatedly punched and kicked at various times.

     No evidence of drugs was found, although the officers allegedly ransacked the home, smashed holes in walls, smashed two doors, and "ate some candy and drank a bottle of soda found in one of the bedrooms." The homeowners also claimed they lost several pets because of the officers' actions, and that they suffered damage to a dresser, a backyard fence, a waterbed, and a rocker/recliner. They sued for unreasonable execution of the search warrant and excessive use of force, as well as lack of probable cause for the search.

     The defendants moved for summary judgment, and while they asked for qualified immunity, their papers only discussed, in any detail, the probable cause and excessive force claims, making no mention of the claim for unreasonable execution of the warrant. The trial court therefore denied summary judgment on the unreasonable execution claim. A federal appeals court held that this denial was not immediately appealable, as it did not rule on the issue of qualified immunity on that claim, but simply denied summary judgment. Peay v. Murphy, #09-4198, 2010 U.S. App. Lexis 20038 (Unpub. 10th Cir.).

Wiretapping, Video Surveillance, and Internet Legal Issues

****Editor's Case Alert****

     Officers were required to obtain a search warrant before viewing an Internet user's e-mail, a federal court ruled, striking down as unconstitutional a portion of the 1986 federal Stored Communications Act, 18 U.S.C. § 2701 et seq., which allowed warrantless access to such emails. The ruling came in a criminal prosecution for fraud of several persons and a company selling Enzyte, an herbal supplement purported to enhance male sexual performance. "Given the fundamental similarities between e-mail and traditional forms of communication, it would defy common sense to afford e-mails lesser Fourth Amendment protection." At the same time, the court ruled that the exclusionary rule did not apply to bar the use of the evidence obtained from the emails, since the federal agents relied in good faith on the provisions of the statute. A criminal conviction was therefore upheld, as was a $400 million forfeiture order. U.S. v. Warshak, #08=3997, 2010 U.S. App. Lexis 25415 (6th Cir.).

     The California Supreme Court has ruled that the warrantless search of a suspect's cell phone for incriminating text messages was valid as incident to a lawful custodial arrest. The cell phone was "immediately associated" with the arrestee's person, being in his possession, so that officers could search it and inspect its contents 90 minutes after the arrest, regardless of whether or not exigent circumstances existed. The defendant was arrested for transporting drugs, and was being interrogated when an incriminating text message believed to refer to a drug transaction was found. Confronted with this, the arrestee confessed, but later argued that the text message was illegally obtained. The court rejected this argument. People v. Diaz, #S166600, 2011 Cal. Lexis 1.

     Editor's Note: While both the cases reported above took place in the context of criminal prosecutions, their reasoning would also apply in civil lawsuits over warrantless searches of e-mails and cellphone text messages.

•Return to the Contents menu.

      Drug Abuse: "A Tale of Three Cities: Drugs, Courts and Community Justice" (NCJ 232872, 12 pp.) discusses how three new and innovative community courts are building on the drug court model, expanding the reach of problem-solving principles beyond specialized courtrooms, and making a significant contribution to the fight against substance abuse.

    Drug Abuse: "Substance Use and Delinquent Behavior Among Serious Adolescent Offenders" (NCJ 232790, 16 pp.) presents results from the Pathways to Desistance study. This bulletin focuses on understanding the connection between substance use and serious offending, including how these behaviors affect one another in adolescence and how they change in early adulthood, particularly when one behavior ceases.

     Female Offenders: "Employment and Female Offenders: An Update of the Empirical Research" (ACCN 024662) explores the literature and summarizes the empirical evidence related to the impact of employment on the criminal behavior of women. Topics discussed include female offender demographics, barriers to employment, correctional education and vocational programs, and the relationship between employment and crime.

     Gangs: "Findings From the Evaluation of OJJDP's Gang Reduction Program" (NCJ 230106, 20 pp.) presents findings from the Urban Institute's evaluation of the Gang Reduction Program's work to reduce gang-related street crime in four cities across the country. The program is designed to address youth's needs and emphasizes the importance of changes in youth's families, communities, and organizations. (OJJDP)

     Identity Theft: "Victims of Identity Theft, 2008" (NCJ 231680, 20 pp. Dec. 2010) presents findings from the 2008 Identity Theft Supplement (ITS) to the National Crime Victimization Survey (NCVS). The NCVS/ITS used interviews from a nationally representative sample of about 56,500 U.S. household residents to collect the first BJS data on individual victims of identity theft.

     Policing Costs: "Making Policing More Affordable: Managing Costs and Measuring Value in Policing" (NCJ 231096, 20 pp.) examines the rising costs of policing in a medium-sized city (Mesa, Arizona) and discusses strategies being tested for managing these costs, including efforts to cut spending, raise productivity, revalue the benefits of policing, and reengineer operations.

     • Abbreviations of Law Reports, laws and agencies used in our publications.

     • AELE's list of recently-noted civil liability law resources.